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Waldman v Commissioner of Police[2025] QDC 11

Waldman v Commissioner of Police[2025] QDC 11

DISTRICT COURT OF QUEENSLAND

CITATION:

Waldman v Commissioner of Police [2025] QDC 11

PARTIES:

DONNA EVE WALDMAN

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO:

111/24

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

3 March 2025

DELIVERED AT:

Cairns

HEARING DATE:

30 January 2025

JUDGE:

Fantin DCJ

ORDER:

  1. Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL – APPEAL AGAINST SENTENCE – where the appellant was convicted of driving over the speed limit and driving under the influence of alcohol – where the appellant was a mature offender with no criminal history – where the appellant had a traffic history – where appellant was fined $1,200, disqualified from driving for six months, and a conviction was recorded – whether the Magistrate erred in law in distinguishing traffic offences from criminal offences – whether the recording of a conviction rendered the sentence manifestly excessive

Justices Act 1886 (Qld) s 222, s 223, s 225(1)

Penalties and Sentences Act 1992 (Qld) s 12

Criminal Code 1899 (Qld) s 2, s 3

Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 3

Transport Operations (Road Use Management) Act 1995 (Qld) s 79

Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 20

Acts Interpretation Act 1954 (Qld)

Barbaro v The Queen (2014) 253 CLR 58

Chakka v Queensland Police Service [2024] QCA 213

Gartner v Brennan [2016] WASC 89

Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27

Hili v The Queen (2010) 242 CLR 520

House v The King (1936) 55 CLR 499

Kentwell v The Queen (2014) 252 CLR 601

Lovell v Lovell (1950) 81 CLR 513

Marshall v Averay [2006] QDC 356

Parker v Commissioner of Police [2016] QDC 354

R v Ali [2023] QCA 207

R v Briese; Ex-parte Attorney-General [1998] 1 Qd R 487

R v Fullalove [1993] QCA 276

R v Hollis [2020] QCA 7

R v Ikin [2007] QCA 224

R v Lawley [2007] QCA 243 

R v MCT [2018] QCA 189

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116

R v ZB [2021] QCA 9

COUNSEL

A Dunkerton for the appellant

N Anderson (sol.) for the respondent

SOLICITORS

Fisher Dore Lawyers for the appellant

The Office of the Director of Public Prosecutions for the respondent

Background

  1. [1]
    On 1 October 2024 the appellant pleaded guilty to, and was convicted of, two offences:
  1. 1.
    driving over the speed limit, contrary to s 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (‘TORUM regulations’), maximum penalty 40 penalty units;[1] and
  1. 2.
    driving under the influence of liquor, contrary to s 79(1)(a) of the Transport Operations (Road Use Management) Act 1995 (‘TORUM’), maximum penalty 28 penalty units or up to nine months imprisonment.
  1. [2]
    At about 4pm on 30 August 2024, police observed the appellant speeding on the Smithfield Bypass Road, north of Cairns. Her vehicle was travelling at 103 kilometres per hour in an 80 kilometre per hour speed limit zone. Police intercepted the appellant and administered a breath test. At 5:07pm at the police station the appellant was breath tested. The breath analysis certificate confirmed a reading of 0.171 grams of alcohol in 210 litres of breath.
  1. [3]
    The Magistrate fined the appellant $1,200, disqualified her from holding or obtaining a driver licence for six months, and recorded a conviction.
  1. [4]
    The appellant appeals against her sentence pursuant to s 222 of the Justices Act 1886 (Qld) (‘JA’) on two grounds:
  1. 1.
    the Magistrate erred in law in recording a conviction because he construed “traffic offences” as different from “criminal offences”; and
  1. 2.
    the sentence was manifestly excessive by virtue of the recording of a conviction. 

Statutory framework and principles

  1. [5]
    An appeal pursuant to s 222 of the JA is by way of rehearing on the original evidence given before the Magistrate, subject to any new evidence adduced by leave: s 223 JA.
  1. [6]
    On the hearing, the judge may confirm, set aside, or vary the appealed order, or make any other order in the matter the judge considers just: s 225(1) JA. 
  1. [7]
    Section 222(2)(c) permits appellate intervention where an error in the exercise of the discretion of the kind recognised by House v The King[2] is established, and the error has resulted in a sentence which is excessive or inadequate.[3] This requires an appellant to demonstrate not only that the sentencing discretion has miscarried due to error but also that the resulting sentence is excessive.[4] Where specific error is established, an appellant will only succeed if they satisfy the appellate judge that absent the error a lesser sentence would have been, or should have been, imposed.[5]
  1. [8]
    It is not necessary however to identify a particular error in the exercise of the discretion:[6]

There may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive.

  1. [9]
    The ground of appeal that a sentence is “manifestly inadequate” or “manifestly excessive”[7] is the residuary or inferred category of error identified in House v The King, which is ‘premised on the result being unreasonable or plainly unjust.’[8] An appellate Court will not interfere unless the error in the exercise of discretion below is clear.[9]
  1. [10]
    In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the appellant for the offence.[10]  It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion.[11] It is well established that comparable cases do not mark the outer bounds of permissible sentencing discretion with numerical precision.[12] To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.[13] In R v MCT, Morrison JA, with whom Sofronoff P and Philippides JA agreed, observed:[14]

Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.

  1. [11]
    The appellant seeks to persuade this Court either that a specific error has been made or, otherwise, that error should be inferred because the outcome is unjust or unreasonable.

Antecedents and criminal history

  1. [12]
    The appellant was 61 years old. She had no criminal history but had a traffic history.
  1. [13]
    Her traffic history contained 14 entries between 2008 and 2022. Twelve of those entries were for speeding. Five of those were relatively recent, occurring between 2017 and 2022. Of the 12 speeding offences: one was for exceeding the speed limit by more than 20km/hr but less than 30km/hr, four were exceeding the speed limit by at least 13km/hr and less than 20km/hr, and seven were exceeding the speed limit by less than 13 km/hr. There were two entries for failing to stop at a red or yellow traffic light. Twice, the appellant had received a demerit point warning letter.

Submissions in Magistrates Court

  1. [14]
    The police prosecutor submitted for a fine and six months disqualification. The prosecutor made no submissions with respect to recording a conviction.
  1. [15]
    The appellant’s solicitor submitted that the appellant was a 61 year old retiree with no criminal history. She played golf four days per week and had been a successful real estate agent with her own business. She had two adult sons. On the day of the offending, she was celebrating her retirement at a lunch with friends and chose to drive home. She acknowledged that her actions were “stupid” and wrong. She pleaded guilty at an early time and had completed the Queensland driver training program. He tendered the course homework sheets as evidence of the appellant’s rehabilitation, insight, and remorse, along with two character references. The solicitor submitted that the disqualification period be limited to the mandatory six months.
  1. [16]
    The appellant’s solicitor submitted that no conviction should be recorded. He said that the recording of a conviction may affect the appellant’s ability to travel, enjoy her retirement and social groups, and her reputation in her small community.

Sentencing remarks

  1. [17]
    In imposing sentence, the Magistrate expressly took into account the early plea of guilty and said he reduced the penalty because of the plea of guilty. He referred to the appellant speeding and having a blood alcohol limit a little over three times the legal limit permitted for someone with an open licence, at 0.171, which he said was a very high reading and a little over the high alcohol limit. He took into account that she was otherwise of good character, was sorry and ashamed, and had shown insight. He noted that it was lucky there were not tragic consequences as a result of her offending. He referred to her traffic history, containing a number of traffic offences involving speeding including high speed. He was satisfied it was appropriate, taking into account her licence had been suspended for over one month and the matters in mitigation, to impose the minimum disqualification and fine the appellant. He then expressly considered each of the factors in s 12 of the Penalties and Sentences Act 1992 (Qld) (‘PSA’), and recorded a conviction.

Error of law?

  1. [18]
    The appellant contends that the Magistrate erred in law in distinguishing between a traffic offence and a criminal offence, and that this error infected the exercise of the sentencing discretion as his Honour regarded it a relevant consideration. Two passages are relied upon.
  1. [19]
    During argument, the Magistrate queried whether there was a difference in a conviction being recorded by a court or by the Department of Transport:

MR FINCH: But never has a court recorded a conviction.

HIS HONOUR: Well, yes. And – I just don’t understand the difference. [emphasis added] What’s your submission about what difference it makes whether it’s done by a court - - -

MR FINCH: Well, it’s now a - - -

HIS HONOUR: - - - or by the Department of Transport.

MR FINCH: These are simple offences; they’re criminal offences. And if a conviction’s recorded, she’s, effectively, branded a criminal. The Court of Appeal has said it’s really a balancing exercise. The real question is: What benefits the community most? Is it this being within the knowledge of other members of the community or whether it’s – whether it benefits the community more that she be able to move forward without a conviction being recorded.

  1. [20]
    The appellant submits that the erroneous distinguishing of the nature of the convictions was also evident in the following extract from the Magistrate’s sentencing remarks:

HIS HONOUR: Of course, your age and character go to your benefit. This is something that has never happened before, of course. And no doubt, the consequences of it have been felt by you for some time since your arrest. The third limb is the impact that the recording that – of a conviction may have on your social or economic wellbeing or your chances of finding employment. Of course, you have retired. So the second limb of that falls away.  And the – your social or economic wellbeing – I did ask your lawyer a number of questions about that impact. However, I do balance that there are a number of entries on your traffic history already. This is a traffic offence, albeit dealt with through a court [emphasis added].

And when I balance these matters, I do determine that it is appropriate to record a conviction. And that there is not anything particularly significant about the impacts of the recording of a conviction that have been placed before me that apply here. So I fine one – impose one fine for both charges at $1,200 referred to SPER. You are disqualified from holding or obtaining a driver’s licence for six months.

  1. [21]
    The appellant submits that these passages demonstrate that the Magistrate fell into error by impermissibly drawing a distinction between criminal offences and traffic offences and proceeded on the basis that a conviction recorded for a traffic offence would be less serious.
  1. [22]
    The driving over the speed limit offence was pursuant to s 20 of TORUM regulations:
  1. 20
    Obeying the speed limit
  1. A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.
  1. Maximum penalty—40 penalty units.
  1. [23]
    The driving under the influence offence was pursuant to s 79(1)(a) of the TORUM:
  1. 79
    Vehicle offences involving liquor or other drugs
  1. (1)
    Offence of driving etc. while under the influence
  1. Any person who, while under the influence of liquor or a drug—
  1. (a)
    drives a motor vehicle, tram, train or vessel; or
  1. (b)
    attempts to put in motion a motor vehicle, tram, train or vessel; or
  1. (c)
    is in charge of a motor vehicle, tram, train or vessel;
  1. is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months. [emphasis added]
  1. [24]
    By 79(3) TORUM, if the court was satisfied that at the material time the appellant was over the high alcohol limit, the appellant was conclusively presumed to have been under the influence of liquor. There was no dispute that she was over the high alcohol limit. If the appellant had been driving with a lower alcohol limit, the offence would have attracted a lesser maximum penalty: for example, see ss 79(1F) and (2).
  1. [25]
    As has been observed by this court,[15] at law there is no separate category of offences comprising “traffic offences”.
  1. [26]
    Section 2 of the Criminal Code 1899 (‘the Code’) provides that ‘an act or omission which renders the person doing the act or making the omission liable to punishment is called an “offence”’.
  1. [27]
    Section 3 of the Code states:
  1. (1)
    Offences are of 2 kinds, namely, criminal offences and regulatory offences.
  1. (2)
    Criminal offences comprise crimes, misdemeanours and simple offences.
  1. (3)
    Crimes and misdemeanours are indictable offences; that is to say, the offenders can not, unless otherwise expressly stated, be prosecuted or convicted except upon indictment.
  1. (4)
    A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
  1. (5)
    An offence not otherwise designated is a simple offence.
  1. [28]
    Having defined what constitutes an offence in s 2, by s 3 the Criminal Code divides offences into categories which determine whether the offence is to be dealt with on indictment or by summary disposition. Part 11 of the Acts Interpretation Act 1954 (Qld) provides for the creation of offences and applicable parameters as to penalty, by statute.
  1. [29]
    The TORUM Schedule 4 Dictionary defines both “traffic history” and “criminal history”:
  1. traffic history of a person means the history of—
  1. (a)
    the contraventions for which the person has been dealt with under this Act, including by the recording of demerit points under a regulation; or
  1. (b)
    the contraventions of the Criminal Code, section 328A for which the person has been dealt with; or
  1. (c)
    the contraventions for which the person has been dealt with as a driver under the Heavy Vehicle National Law (Queensland); or
  1. (d)
    the contraventions of the Police Powers and Responsibilities Act 2000, section 754 for which the person has been dealt with.
  1. criminal history, of a person—
  1. (a)
    for chapter 5, part 7A—see section 122; and
  1. (b)
    generally—
  1. (i)
    means the person’s criminal history as defined under the Criminal Law (Rehabilitation of Offenders) Act 1986, other than a conviction for which the rehabilitation period has expired but the conviction has not been revived as prescribed by section 11 of that Act; and
  1. (ii)
    despite the Criminal Law (Rehabilitation of Offenders) Act 1986, includes a charge made against the person for an offence, whether made in Queensland or elsewhere, other than a charge the proceedings for which have ended without the person being convicted.
  1. [30]
    Relevantly, s 3 of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) defines “criminal history” to mean, ‘in relation to any person, the convictions recorded against that person in respect of offences.’
  1. [31]
    Section 12 of the PSA is concerned with whether or not a conviction is recorded for a criminal or regulatory offence. Where the discretion is exercised not to record a conviction, that allows for the conviction to only be recorded in the offender’s criminal history and only for the purposes of consequential proceedings in respect of the sentence imposed for that offence and subsequent proceedings for the same or a subsequent offence: s 12(3).
  1. [32]
    There is no basis to distinguish between the recording of a conviction for a traffic offence and recording a conviction for another kind of criminal offence. Obviously the nature and type of the offence for which the conviction is recorded may have different consequences, including in society’s perception of the moral culpability and objective gravity of the offending.
  1. [33]
    The respondent submits that the court could not be satisfied that the discussion during argument and the reference to a “traffic offence” in the sentencing remarks means that the Magistrate was acting in error in distinguishing between a traffic conviction and a criminal conviction. It suggests it may have been a reference to the fact that these were offences under TORUM, or a reference to the offending being dealt with by the court as opposed to the Department of Transport (as had previously occurred).
  1. [34]
    Other than the two passages above, there was no other reference by the Magistrate to the offending being a “traffic offence” or comparison of the potential consequences of a conviction being recorded.
  1. [35]
    I accept that the words spoken by the Magistrate, particularly in argument, relied upon by the appellant were ambiguous. But the Magistrate’s observations in argument are not his reasons for judgment or sentence and should not be construed as if they were. The process of testing propositions and floating propositions in argument is a radically different process from stating the findings of fact relied upon in a sentencing decision. Observations during argument do not form part of the sentencing remarks and statements made during it are not findings that are part of the sentencing decision.
  1. [36]
    When reviewing the exercise of discretion of this nature, it is important to consider the Magistrate’s sentencing reasons overall, and fairly. The language used by a Magistrate in sentencing remarks delivered ex tempore in a busy court should not be scrutinised too closely with a view to finding error.[16]  In this regard, I adopt the following observations by Pritchard J in Gartner v Brennan [2016] WASC 89 at [58], which apply equally in the Queensland context:[17]

Many cases have confirmed that magistrates are expected to undertake the work of that busy Court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decision given by magistrates with an eye keenly attuned to the identification of error, and errors should not be inferred from mere infelicities of language. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached. The adequacy of a magistrate’s reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced). [references omitted]

  1. [37]
    In his sentencing reasons, the Magistrate gave express and careful consideration the relevant criteria in s 12 of the PSA. It was in that context that he said, ‘I do balance that there are a number of entries on your traffic history already. This is a traffic offence, albeit dealt with through a court.’  In my view that can be construed as a reference to the fact that the appellant did not have an unblemished driving record but rather had multiple entries in her traffic history for speeding, including relatively recent entries. That was clearly relevant to personal deterrence. In my view, the Magistrate was not seeking to identify the offences as a separate category to criminal offences.
  1. [38]
    On balance, there is insufficient evidence to establish that the Magistrate fell into error by proceeding on the basis that recording a conviction for a traffic offence would somehow have less serious consequences than recording a conviction for another criminal offence.
  1. [39]
    Looking at the reasons the Magistrate gave fairly, and as a whole, I am not satisfied that there was a clear error in the exercise of the sentencing discretion, or that if there was an error, it resulted in a sentence that was excessive. Therefore, the court should not interfere on this basis. This ground of appeal fails.

Sentence manifestly excessive?

  1. [40]
    A court may impose a fine, pursuant to s 44 of the PSA, whether or not it records a conviction.
  1. [41]
    Section 12 of the PSA provides:
  1. (1)
    A court may exercise a discretion to record or not record a conviction as provided by this Act.
  1. (2)
    In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
  1. (a)
    the nature of the offence; and
  1. (b)
    the offender’s character and age; and
  1. (c)
    the impact that recording a conviction will have on the offender’s—
  1. (i)
    economic or social wellbeing; or
  1. (ii)
    chances of finding employment
  1. [42]
    The Court of Appeal in R v Briese; Ex-parte Attorney-General[18] noted it is a balancing exercise for the Court to consider the seriousness of the offence and the economic or social impact of recording a conviction.
  1. [43]
    In R v ZB,[19]Sofronoff P said at paragraph [10]:

However, as is implied by the factors that are identified in s 12(2)(b) and (c), the offender’s subjective circumstances so far as they relate to the offender’s future prospects are also significant matters. They raise for consideration whether the promise of future rehabilitation calls for and justifies affording the offender the advantages that flow from not recording a conviction. To put it another way, the question is whether the community will be better served by not placing the obstacles created by a recorded conviction in the path of the offender towards rehabilitation. The issue is not one of tenderness to the offender.

  1. [44]
    In R v Ali[20] the Court of Appeal observed:

The discretion conferred on a sentencing court by s 12 must not be considered in isolation from the particular sentencing option that the court is considering. Further, the sentencing options available to the court must not be considered in isolation from whether a conviction should be recorded or not. The combined effect of the orders must be evaluated before the court decides upon the appropriateness of a proposed sentence. If the proposed sentence is inappropriate the court should not impose the sentence and should consider another option or combination of options. [references omitted]

  1. [45]
    In this case, impact on economic wellbeing by loss of employment opportunities was not relied upon as a relevant factor either in the Magistrates Court or on appeal.
  1. [46]
    The only relevant issue is whether the Magistrate failed to have regard to the impact that recording a conviction ‘will have’ on the appellant’s ‘social wellbeing’, within s 12(2)(c)(i) of the PSA, and, if so, whether that failure constituted a material error by his Honour in exercising the discretion under s 12 to record or not record a conviction.
  1. [47]
    During the hearing in the Magistrates Court, the appellant’s solicitor emphasised that appellant was a mature person from the Northern Beaches’ community, who had a high profile and was well respected. He submitted that ‘never having been to the court before, wanting to enjoy her retirement, travel, enjoy social groups and enjoy a reputation in her small community, a conviction being recorded would make that retirement fairly dismal.’ [emphasis added]
  1. [48]
    The Magistrate observed that there were many entries in her traffic history and asked how her retirement would be “dismal” if he recorded a conviction. The solicitor submitted: ‘Well, in particular, in relation to travel. And I’d say, I mean, she’s got to the age of 61 without having a conviction recorded by a court. To suddenly, in retirement be, effectively, branded with a criminal conviction.’
  1. [49]
    The Magistrate specifically asked the solicitor what impact the recording of a conviction would have on her social or economic wellbeing. The solicitor responded:

Well, it’s difficult to prove any impact upon her social life with evidence. But one can imagine, for instance – I mean, this is just notional, but if she wanted to join the board of the local golf club, would the people who run or decide whether she enters onto the board need to know if she’s had a conviction recorded for drink driving. I’d say no. [emphasis added]

  1. [50]
    The appellant emphasised that the impact of a conviction being recorded is of particular significance to someone of the appellant’s age, and that the question of age, in the context of section 12(2)(b) of the PSA, is not limited to young people. That is uncontroversial. But an offender’s young age is often relevant to the exercise of discretion under s 12 because they have their whole lives ahead of them, their future employment or career is often unknown, and their prospects of rehabilitation might be unduly jeopardised by the possible effect of recording of a conviction. This was not such a case. There is no suggestion of the appellant’s future rehabilitation being jeopardised by the recording of a conviction.
  1. [51]
    On appeal, the appellant did not seek leave to adduce new evidence including as to the impacts on her social wellbeing of recording a conviction.
  1. [52]
    The appellant relied upon two decisions.
  1. [53]
    In R v Hollis[21] the appellant pleaded guilty to one count of assault occasioning bodily harm while armed. He was fined $5,000 and a conviction was recorded. He appealed, successfully, against the recording of the conviction on the basis of its impacts on his social and economic wellbeing including his membership of a yacht club. The appellant was 71 years old at the time of the offending and 74 at sentence. He had no criminal history at the time of the offence but had convictions since then. There were specific submissions about the impacts of recording a conviction on the appellant’s yacht club membership. The court found that the sentencing judge gave no regard to the significance of those matters, and others, in mitigation, and re-exercised the sentencing discretion. The appellant relied upon evidence adduced on the appeal to demonstrate actual impact including action which would be taken against him under the club’s code of conduct. The court considered that the exercise of the discretion to not record a conviction would itself be a relevant factor for that organisation to consider if action was taken against the appellant. The appellant was able to demonstrate an actual adverse impact. In contrast, the appellant here did not rely upon any evidence nor did the submissions on her behalf rise above speculation.
  1. [54]
    In R v Fullalove[22] the appellant was a 49 year old woman with disabilities, confined to a wheelchair, with no criminal history. She was found guilty of unlawful possession of a small amount of cannabis. She was convicted on the basis of a statutory presumption that the drugs were hers because of her status as the tenant of the rental premises, although she claimed the drugs had been brought onto the property by someone else and she was unaware of their presence. She was sentenced to a good behaviour bond and a conviction was recorded. She successfully appealed the recording of a conviction. Her solicitor submitted there was an adverse impact on her economic and social wellbeing. On appeal, by majority, the court inferred an adverse impact on the appellant’s economic and social wellbeing. Lee J observed that recording a conviction for possession of dangerous drugs may well have a future impact on the appellant’s economic and social well-being, and particularly on her reputation as a tenant and her ability of readily obtaining suitable rental premises in the future.[23] Accepting that in some cases the court may infer an adverse impact, the facts of that case are so different they do not assist here.
  1. [55]
    In this case, the Magistrate’s reasons reveal an orthodox, and correct, assessment of the factors relevant to s 12 of the PSA.
  1. [56]
    In considering the nature of the offence, the Magistrate observed that:

It is a very high reading. You well and truly would have known that you were over the reading – the legal limit when you embarked on the driving here. It is made more dangerous by being combined with speeding as well against a background of speeding on your traffic history.

  1. [57]
    He took into account that the appellant’s age and character were matters in her favour, and said that the offending was out of character (presumably this was a reference to driving under the influence rather than speeding). He expressly considered the impact that recording a conviction may have on the appellant’s social or economic wellbeing or chances of finding employment. He noted that she was retired, and said the second limb of that fell away. He noted that he asked her lawyers a number of questions about the social or economic impact, and balanced that against the entries in her traffic history. In finding that it was appropriate to record a conviction, the Magistrate determined, correctly, that ‘there is not anything particularly significant about the impacts of the recording of a conviction that have been placed before me that apply here.’
  1. [58]
    I do not consider that the Magistrate erred in the exercise of his discretion in ordering that a conviction be recorded. The appellant was driving under the influence of alcohol, over the high alcohol limit, and speeding at more than 20 kilometres over the speed limit, on a major arterial road at a busy time of the day. The appellant’s recent traffic history for multiple speeding offences was an aggravating factor. No evidence was placed before the Magistrate, nor identified in submissions, of an actual or even likely (as opposed to notional or speculative) impact on her economic or social wellbeing.
  1. [59]
    In all the circumstances, the recording of a conviction did not fall outside a properly available range of penalty. It was open to the Magistrate to reflect the purposes of just punishment, general and personal deterrence, and denunciation, by recording a conviction. That is not to say that another Magistrate might not have imposed a lesser penalty by declining to record a conviction. But that is not the test.

Disposition

  1. [60]
    The appellant has not established any legal, factual or discretionary error on the part of the sentencing Magistrate or, ultimately, that the total sentence ultimately imposed is an excessive one by the recording of a conviction. 
  1. [61]
    The appeal should be dismissed.

Footnotes

[1] The value of a penalty unit at the date of the offence was $161.30, making the maximum penalty a fine of $6,452.

[2] (1936) 55 CLR 499 (‘House’), 504-505 (Dixon, Evatt and McTiernan JJ).

[3] Chakka v Queensland Police Service [2024] QCA 213 (‘Chakka’), [87] (Brown J, Mullins P and Bond JA agreeing).

[4] Ibid [88].

[5] Ibid [89].

[6] R v Ikin [2007] QCA 224, 6 (Keane JA, Williams JA and Mullins J agreeing).

[7] Hili v The Queen (2010) 242 CLR 520 at 538 [58] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[8] Chakka (n 3) [48].

[9] Lovell v Lovell (1950) 81 CLR 513, 519 (Latham CJ), 533 – 534 (Kitto J).

[10] Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ, Gageler J agreeing).

[11] House (n 2), 504-505 (Dixon, Evatt and McTiernan JJ); ibid; R v Lawley [2007] QCA 243, [18] (Keane JA, Williams JA and Mullins J agreeing).

[12] Barbaro v The Queen (2014) 253 CLR 58, 74 [41] (French CJ, Hayne, Kiefel and Bell JJ); R v MCT [2018] QCA 189 (‘MCT’) [239] (Morrison JA, Sofronoff P and Philippides JA agreeing).

[13] R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 [15] (Sofronoff P, Gotterson JA and Henry J agreeing).

[14] MCT (n 12) [240].

[15] E.g. Parker v Commissioner of Police [2016] QDC 354.

[16] See Marshall v Averay [2006] QDC 356 [51] (McGill DCJ), dealing with a different exercise of discretion but the observations are equally apt here.

[17] Cited with approval by Bowskill QC DCJ in Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27 [28].

[18] [1998] 1 Qd R 487, 493 (Thomas and White JJ).

[19] [2021] QCA 9.

[20] [2023] QCA 207 at [71] (Buss AJA, Flanagan JA and Kelly J agreeing).

 

[21] [2020] QCA 7.

[22] [1993] QCA 276, 15 (Lee J).

[23] Ibid, 17.

Close

Editorial Notes

  • Published Case Name:

    Waldman v Commissioner of Police

  • Shortened Case Name:

    Waldman v Commissioner of Police

  • MNC:

    [2025] QDC 11

  • Court:

    QDC

  • Judge(s):

    Fantin DCJ

  • Date:

    03 Mar 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Barbaro v The Queen (2014) 253 CLR 58
2 citations
Jump To
Cite 1 - (2014) 253 CLR 58
Cite 2 - (2014) 253 CLR 58
Chakka v Queensland Police Service [2024] QCA 213
2 citations
Jump To
Cite 1 - [2024] QCA 213
Cite 2 - [2024] QCA 213
Gartner v Brennan [2016] WASC 89
2 citations
Jump To
Cite 1 - [2016] WASC 89
Cite 2 - [2016] WASC 89
Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27
2 citations
Jump To
Cite 1 - [2017] QDC 27
Cite 2 - [2017] QDC 27
Hili v The Queen (2010) 242 CLR 520
2 citations
Jump To
Cite 1 - (2010) 242 CLR 520
Cite 2 - (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Kentwell v The Queen (2014) 252 CLR 601
2 citations
Jump To
Cite 1 - (2014) 252 CLR 601
Cite 2 - (2014) 252 CLR 601
Lovell v Lovell (1950) 81 CLR 513
2 citations
Jump To
Cite 1 - (1950) 81 CLR 513
Cite 2 - (1950) 81 CLR 513
Marshall v Averay [2006] QDC 356
2 citations
Jump To
Cite 1 - [2006] QDC 356
Cite 2 - [2006] QDC 356
Parker v Commissioner of Police [2016] QDC 354
2 citations
Jump To
Cite 1 - [2016] QDC 354
Cite 2 - [2016] QDC 354
R v Ali [2023] QCA 207
2 citations
Jump To
Cite 1 - [2023] QCA 207
Cite 2 - [2023] QCA 207
R v Briese; Ex parte Attorney-General[1998] 1 Qd R 487; [1997] QCA 10
2 citations
Jump To
Cite 1 - [1998] 1 Qd R 487
Cite 2 - [1998] 1 Qd R 487
R v Hollis [2020] QCA 7
2 citations
Jump To
Cite 1 - [2020] QCA 7
Cite 2 - [2020] QCA 7
R v Ikin [2007] QCA 224
2 citations
Jump To
Cite 1 - [2007] QCA 224
Cite 2 - [2007] QCA 224
R v Lawley [2007] QCA 243
2 citations
Jump To
Cite 1 - [2007] QCA 243
Cite 2 - [2007] QCA 243
R v MCT [2018] QCA 189
2 citations
Jump To
Cite 1 - [2018] QCA 189
Cite 2 - [2018] QCA 189
R v Sprott; ex parte Attorney-General [2019] QCA 116
2 citations
Jump To
Cite 1 - [2019] QCA 116
Cite 2 - [2019] QCA 116
R v ZB [2021] QCA 9
2 citations
Jump To
Cite 1 - [2021] QCA 9
Cite 2 - [2021] QCA 9
The Queen v Fullalove [1993] QCA 276
2 citations
Jump To
Cite 1 - [1993] QCA 276
Cite 2 - [1993] QCA 276

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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